Citation NR: 9620200
Decision Date: 07/17/96 Archive Date: 07/31/96
DOCKET NO. 93-04 652 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for migraine headaches.
2. Entitlement to a permanent and total disability rating
for pension purposes.
REPRESENTATION
Appellant represented by: Thomas R. Kirvin, Attorney
ATTORNEY FOR THE BOARD
John J. Crowley, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1969 to April
1971.
This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO). In
a December 1994 decision, the Board upheld the RO’s denial of
the veteran’s claims on the issues of entitlement to service
connection for post-traumatic stress disorder and an anxiety
disorder, entitlement to an increased evaluation for
hypertension with headaches, evaluated as 10 percent
disabling, and entitlement to a permanent and total rating
for pension purposes. In its decision the Board stated, in
pertinent part:
In the veteran's June 1992 notice of
disagreement, he indicates disagreement
with the denial of an increased rating
for hypertension with migraine headaches.
Service connection has been established
for hypertension with headaches which are
due to his hypertension. Therefore, the
veteran should be advised that service
connection for the separate disorder of
migraine headaches has not been
established and if he desires to file a
claim for service connection for migraine
headaches he may do so.
The veteran filed a timely appeal to the United States Court
of Veteran's Appeals (Court). In December 1995, the General
Counsel for the Department of Veterans Affairs (General
Counsel) and the veteran's attorney filed a joint motion to
vacate the Board's decision and to remand this matter for
development and readjudication. That month, after a review
of the joint motion, the Court sought clarification over
which issues within the Board’s December 1994 determination
the General Counsel and the veteran’s attorney desired the
Court to vacate. In February 1996, the Court granted the
joint motion for that part of the Board’s decision that
denied entitlement to service connection for migraine
headaches and a total disability rating based upon individual
employability was vacated. Based on a review of the joint
motion, it also appears that the Board must adjudicate the
issue of total disability rating based on unemployability due
to his service-connected disability. The appeal as to the
remaining issues, having been abandoned, were dismissed by
the Court.
REMAND
In the joint motion to vacate and remand, it was indicated
that the Board had failed to obtain pertinent medical reports
from eight doctors used in a Social Security Administration
(SSA) Administrative Law Judge’s February 1984 decision. It
appears that the joint motion is referring to a decision
issued by SSA Administrative Law Judge Robert L. Cox in
November 1984. This decision awarded the veteran
supplemental security income under the Social Security Act.
The joint motion also indicated that a more thorough
evaluation of the veteran’s disabilities was required. The
joint motion instructed the Board to direct the RO to perform
“another examination of [the veteran] during a headache
attack or exacerbation.” The joint motion does not
illustrate how the VA is to schedule the veteran for an
evaluation of his headaches at the moment he is having a
headache or how an evaluator is to distinguish between his
service-connected headaches and an alleged migraine disorder
associated with his active service. In any event, VA must
attempt to comply with the instructions of the joint motion.
With regard to the veteran’s claim of entitlement to a
permanent and total disability rating for pension purposes,
the Court has provided an analytical framework for an
application in pension cases. Talley v. Derwinski,
2 Vet.App. 282 (1992); Roberts v. Derwinski, 2 Vet.App. 387
(1992); and Brown v. Derwinski, 2 Vet.App. 444 (1992). The
holdings in these cases are to the combined effect that the
VA has a duty to ensure that an appropriate rating for each
disability of record is assigned using the approach mandated
by Schafrath v. Derwinski, 1 Vet.App. 589 (1991), that the
"average person" and "unemployability" tests are both
applied, and that if the benefit may not be awarded under the
"average person" or "unemployability test," a determination
must then be made whether there is entitlement to nonservice-
connected disability pension on an extraschedular basis.
The average person, (or objective test) is rooted in
38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. § 4.5
(1995) and mandates that a total disability will be found to
exist when there is present any impairment of mind or body
which is sufficient to render it impossible for the average
person to follow a substantial gainful occupation, provided
that the impairment is reasonably certain to continue
throughout the life of the disabled person.
The unemployability (or subjective) test arises from
38 U.S.C.A. § 1521(a) (West 1991) and
38 C.F.R. §§ 3.321(b)(2) and 4.17 (1995) and mandates that
where it is shown that the veteran's disabilities meet the
requirements of 38 C.F.R. § 4.16 (1995), and it is shown that
his disabilities are permanent in nature a determination
should be made whether such disabilities render him or her
incapable of substantial gainful employment. If so, the
veteran again meets the requirements under law for the
benefit at issue.
Finally, if the veteran does not meet either the "average
person" or the "unemployability test," a determination is
required as to whether the veteran should be granted
entitlement to a nonservice-connected disability pension
pursuant to the provisions of 38 C.F.R. § 3.321(b)(2) (1995)
on the basis that he or she is unemployable by virtue of age,
occupational background, or other related factors.
In the course of adjudicating the claim, the RO must also
make the determination as to whether any of the disabilities
in question are the result of the veteran's willful
misconduct. 38 U.S.C.A. § 1521 (West 1991) and Abernathy v.
Derwinski, 2 Vet.App. 391, 394 (1992).
In light of the foregoing, the Board finds that further
development, as specified below, is warranted. Accordingly,
the case is REMANDED for the following development:
1. The RO should request the veteran to
identify the names, addresses, and
approximate dates of treatment for all
health care providers who may possess
additional records pertinent to his
claims. With any necessary authorization
from the veteran, the RO should attempt
to obtain copies of those treatment
records identified by the veteran which
have not been previously secured,
including the names and addresses of the
physicians noted in the SSA
Administrative Law Judge’s February 1984
decision.
2. The veteran should be requested to
complete and return an up-to-date
employment information statement. The
veteran is also asked to submit a
statement listing all disabilities he
currently suffers and the effect that
each has on his ability to function.
3. The RO should obtain from the SSA a
copy of any additional disability
determination or determinations
it has made for the veteran since
November 1984 and copies of the medical
records upon which any of its
determinations were based, including the
medical reports cited by SSA within its
November 1984 decision.
4. The veteran should be afforded an
evaluation by a VA neurologist, if
available, to ascertain the nature,
extent and etiology of any migraine
disorder found to be present. All
indicated studies should be performed.
The examiner should specifically comment
on the following:
(a) Whether the veteran currently
has objective evidence of a migraine
disorder.
(b) Whether it is as likely as not
that a migraine disorder is linked
to the veteran's service-connected
hypertension with headaches.
(c) Whether it is as likely as not
that a migraine condition is linked
to the veteran’s active service.
(d) Whether the veteran’s service-
connected hypertension with
headaches aggravated problems with
his migraines and, if so, what level
of disability is attributable to
that aggravation.
(e) If a migraine condition is
found, the examiner should indicate
the number and severity of attacks
the veteran’s sustains within an
average month as the result of this
condition.
The claims folder should be made
available to the examiner for review in
conjunction with her or his examination
of the veteran. In order to fulfill the
mandates of the joint motion, the RO must
attempt to evaluate the veteran during a
“headache attack or exacerbation.” If
necessary, the RO should schedule the
veteran for a period of observation and
evaluation at a VA Medical Center to
fulfill the requirements of the joint
motion and the Court.
5. The veteran should be accorded a VA
general medical examination. The
examination should include any orthopedic
complaints and provide a comprehensive
report concerning the nature and extent
of all disabilities found to be present,
including any listed by the veteran in
paragraph two above. All necessary tests
should be conducted and the examiner
should review the results of any testing
in conjunction with the completion of the
report.
6. The VA general medical examiner
should note any weakened movement, excess
fatigability, incoordination, and the
examiner should comment on the severity
of these manifestations on the ability of
the veteran to perform average employment
in a civil occupation. If the severity
of these manifestations can not be
quantified, the examiner should so
indicate. With respect to the subjective
complaints of pain, the examiner is
requested to specifically comment on
whether pain is visibly manifested on
movement of the joints, the presence and
degree of, or absence of, muscle atrophy
attributable to any disability, or the
presence or absence of any other
objective manifestation that would
demonstrate functional impairment due to
pain attributable to a disability.
7. The RO should review the medical reports
above to determine if they meets the
requirements of paragraphs above and the
requirements of the December 1995 joint
motion. If not, the report or reports should
be returned as inadequate for rating
purposes. 38 C.F.R. § 4.2 (1995).
8. Thereafter, the case should be
reviewed by the RO. The rating decision
should reflect that consideration was
given to the provisions of 38 C.F.R. §
3.310(a) (1995). The RO must also
adjudicate the claim for a 100 percent
rating based on unemployability due to a
service-connected disability or
disabilities with consideration of
38 C.F.R. §§ 3.321(b)(1) and 4.16 (1995).
Specific reference should be made to the
service-connected disability and the
following issues outlined by the Court in
Fanning v. Brown, 4 Vet.App. 225, 231
(1993), DeLuca v. Brown, 8 Vet. App. 202,
206 (1995), and Floyd v. Brown, 9
Vet.App. 88 (1996): (1) Extra-schedular
consideration, pursuant to 38 C.F.R. §§
3.321(b)(1) (1995) and 4.16(b) (1995) or
an explanation for rejection of the
applicability of such consideration for
any service-connected disability; and (2)
Consideration of veteran’s employability
in light of the pain he suffers.
The veteran is advised that the claim of
a 100 percent rating based on
unemployability due to a service-
connected disability will not be before
the Board unless the determination of the
RO is unfavorable, and the veteran files
a notice of disagreement and completes
all procedural steps necessary to appeal
a claim to the Board in accordance with
38 U.S.C.A. § 7105 (West 1991).
9. With regard to the claim of
entitlement to a permanent and total
disability rating for pension purposes,
the RO must take into specific
consideration 38 U.S.C.A. §§ 1110 ,
1111(West 1991) and 38 C.F.R. §§ 3.303,
3.306 (1995). Consideration should be
accorded to whether 38 C.F.R. §§ 4.40,
4.45 (1995) apply to any of the veteran’s
disabilities. The RO should readjudicate
the claim for pension benefits as
follows:
(a) The RO must list all the
veteran's disabilities on a formal
rating document and assign separate
evaluations to each disability. In
evaluating each of the disabilities,
consideration should be given to
entitlement to an extraschedular
evaluation under 38 C.F.R.
§ 3.321(b)(2) (1995) for each
disability. In doing this, the RO
should also consider the following
cases from the Court: Talley v.
Derwinski, 2 Vet.App. 282 (1992);
Roberts v. Derwinski, 2 Vet.App. 386
(1992) and Abernathy v. Derwinski,
2 Vet.App. 391 (1992).
(b) The case should then be
considered under the two-prong test
enunciated by the Court in Brown v.
Derwinski, 2 Vet.App. 444 (1992).
That is, with consideration of the
“objective” test under 38 C.F.R.
§§ 4.15, 4.16 and 4.17 (1995) and
the “subjective” test under
38 C.F.R. §§ 3.321(b)(2), and 4.15
and 4.17 (1995).
If the benefits sought on appeal are not granted to the
veteran's satisfaction, the RO should issue a supplemental
statement of the case, and he and his representative should
be provided an opportunity to respond. The case should then
be returned to the Board for further appellate consideration,
if otherwise in order.
RICHARD B. STANDEFER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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